Article excerpt

Last year, in Lawrence v. Texas, (1) the Supreme Court declared unconstitutional a Texas law criminalizing homosexual sodomy. (2) Following the decision, legal scholars were quick to note what appeared to be a new chapter in the Court's substantive due process jurisprudence. (3) But while Lawrence was undoubtedly an important decision, (4) it raised more questions than it answered. (5) Recently, in Williams v. Attorney General, (6) the Eleventh Circuit considered the import of the Court's decision in Lawrence and held that there is no fundamental right in the Constitution protecting the use of sex toys. (7) Although the majority was ultimately correct to uphold the Alabama statute, its restrictive reading of Lawrence was well off the mark. The dissent, in contrast, favored an unjustifiably broad interpretation of Lawrence that went beyond the limits of that case. Unfortunately, by failing to acknowledge the equal protection principles underlying the Supreme Court's watershed decision, both sides risked undermining the precedential value and cultural significance of Lawrence.

In 1998, the Alabama legislature made it a crime to distribute "any device designed or marketed as useful primarily for the stimulation of human genital organs for any thing of pecuniary value." (8) Vendors and users of "sexual devices" (9) challenged the constitutionality of the statute, contending that its implementation would violate their fundamental right to privacy and personal autonomy. (10) Plaintiffs further argued that the legislation violated due process because it did not bear a rational relationship to a legitimate state interest. (11) Applying rational basis review, the district court held that the statute was unconstitutional because it was not rationally related to the state's interest in regulating public morality. (12)

The Eleventh Circuit reversed the district court's rational basis holding, but remanded the case for further consideration of the plaintiffs' fundamental rights argument. (13) Writing for a unanimous panel, Judge Black (14) stated that the record was insufficient to allow a ruling on the as- applied fundamental rights claim because the district court "analyzed neither whether our nation has a deeply rooted history of state interference, or state non-interference, in the private sexual activity of married or unmarried persons nor whether contemporary practice bolsters or undermines any such history." (15)

On its second hearing of the case, the district court again struck down the Alabama statute. (16) The district court first framed the plaintiffs' asserted liberty interest as a general "right to sexual privacy" (17) and then held that the Constitution protected this right. (18) Finding that the challenged statute was not narrowly tailored to meet a compelling state interest, (19) the district court accordingly concluded that the prohibition on the sale of sexual devices was unconstitutional. (20)

The Eleventh Circuit reversed. (21) Writing for the majority, Judge Birch (22) declined to recognize a fundamental right to sexual privacy under the Constitution. (23) The majority maintained that recognizing such a right under Lawrence would be inappropriate because "the Lawrence opinion did not employ fundamental-rights analysis and ... ultimately applied rational-basis review, rather than strict scrutiny, to the challenged statute." (24) Having deemed Lawrence inapplicable to a fundamental rights claim, the majority performed a Glucksberg analysis (25) and held that the district court "committed reversible error in concluding that the Due Process Clause 'encompass[es] a right to use sexual devices like ... vibrators, dildos, anal beads, and artificial vaginas.'" (26) In applying Glucksberg, the majority particularly disagreed with the district court's characterization of the asserted constitutional right as a liberty interest in sexual privacy. …